HomeMy WebLinkAbout99-02675
.
.
Plaintiff
IN 'l'HE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CLIFF HOUSER,
V5.
NO. 99-2675 CIVIL TERM
ANGELICA MARTINEZ,
CIVIL ACTION - LAW
Defendant
: IN CUSTODY
ORDER OF CCXJRr
AND NCW, this ~ day of
consideration of the attached CUstody
and directed as follows::
'\" ",.. , 1999, upon
eoncJ.liation Report, it is ordered
1. The Father, Cliff Houser, and the Mother, Angelica Martinez, shall
have shared legal custody of Aiyana Martinez, born November 21, 1998. Each
parent shall have an equal right, to be exercised jointly with the other
parent, to make all major non-emergency decisions affecting the Child's
general well-being including, but not limited t.o, all decisions regarding
her health, education and religion.
2. The Mother shall have primary physical custody of the Child.
3. The Father shall have Cllstody of the Child at the Mother's
residence in Philadelphia on Tuesdays and Wednesdays from 8:00 a.m. through
8:00 p.m. until August 23, 1999. Beginning August 23, 1999 and continuing
thereafter, the Father shall have partial physical custody of the Child
(not limited to the Mother's residence) during alternating weeks from
Monday at 5:00 p.m. through the following Wednesday at 8:00 p.m.
4. The parties shall share or alternate having custody of the Child
over holidays as follows:
A. aIRIS'l'MAS: The Father shall have custody of the Child over
Christmas in odd numbered years from December 23 at 12:00 noon
through December 24 at 10:00 p.m. In even numbered years, the
Father sh"ll have custody of the Child iran Christmas Day at
1:00 a.m. through December 27 at 8:00 p.m. In odd numbered
years, the Mother shall have custody of the Child from
December 24 at 10:00 p.m. through the entire Christmas Day.
In even nllllbered years, the Mother shall have custody of t.he,
Child from December 24 through Christmas Day at 1:00 a.m.
B. TlIANKSGIVING: The Father shall have custody of the Child on
Thanksgiving Day in odd numbered years and t.he Mother shall
have custody of the Child on Thanksgiving Day in even numbered
years. If the Father's regular pedod of partial custody
falls immediately preceding the Thanksgiving holiday in 1999,
the Father shall have custody of the Child from Tuesday at
5:00 p.m. through Thanksgiving. If the Father's regular.
period of custody falls imw~iately preceding the Thanksgiving
holiday in subsequent years, the Father shall have custody of
the Child from the Monday before Thanksgiving at 5:00 p.m.
through Thanksgiving Day.
C. JULY 4T'11: The Mother shall have custody of the Child every
year on July 4th.
D. I.ABOO. MY: The Father shall have custody of the Child every
year on Labor Day.
E. FATHER'S MY: Beginning in 2000, the Father shall have
custody of the Child from Father's Day at 1:00 p.m. through
the following Monday at 8:00 p.m. if Father's Day falls during
a week when the Father does not have a regular period of
custody wi th the Child. If the Father does have a regular
period of custody with the Child during Father's Day week, the
Father shall have custody of the Child from Father's Day at
1:00 p.m. through the following Wednesday at 8:00 p.m.
F. TIlE CHILD'S BIRTHDAY: In even numbered years, when the Father
does not have a period of holiday custody on Thanksgiving Day,
the Father shall be entitled to have a period of custody with
the Child in Philadelphia on the Child's birthday.
5. In 2000, the Father shall have one one-week period of
uninterrupted custody with the Child during the sumner upon providing at
least one nonths notice to the Mother. In 2001 and thereafter, the Father
shall be entitled to have custody of the Child for up to two weeks during
the surrmer upon providing one months advance notice to the Mother. The
Father agrees to not schedule his period of extended surrmer custody under
this provision in July without the Mother's consent.
6. The parties shall share the responsibility to provide
transportation for exchanges of custody as art'anged by agreement of the
parties with the understanding that the Mother will be working during many
periods when the exchanges are scheduled to occur.
7. The parties agree that subsequent to entry of this Order,
jurisdiction over this custody matter shall be in Philadelphia, where the
Mother and Child reside.
8. '!he Mother shall withdraw her Motion to Strike for lack of
jurisdiction and Motion to Change Venue which have been filed with this
Court. '!he Mother shall also take all steps necessary to cancel the
Master's Hearing currently scheduled in the pending custody proceedings in
Philadelphia as all custody issues have been resolved by agreement of the
parties and are set forth in this Order.
9. The Father shall withdraw his Preliminary Objections to
Jurisdiction which have been filed in the custody proceedings pending in
Philadelphia.
,
CLIFF HOUSER, IN THE COUR1' OF COMMON PLEAS OF ' I.
Plaintiff : CUMBERLAND c.'OUNTY, PENNSYLVANIA !
:
vs. NO. 99-2675 CIVIL TERM
:
ANGELICA MARTINEZ, : CIVIL ACTION - LAW
Defendant :
: IN CUSTODY
CUSTODY a:NCILIATICN SU1HARY REPmT
IN Aco::mllINCE wrm aJlBERLAND CXUlTY RULE OF CIVIL PROCEDURE
1915.3-8, the undersigned CUstody Conciliator submits the following report:
1. The pertinent information concerning the Child who is the subject
of this litigation is as follows:
NlIME
DATE OF BIRTB
CURRENrLY IN Cl.lS'lOOY OF
Aiyana Martinez
November 21, 1998
Mother
2. A Conciliation Conference was held on June 4, 1999, with the
following individuals in attendance: The Father, Cliff Houser, with his
counsel, Jacqueline M. Verney, Esquire. The Mother, Angelica Martinez, who
resides in philadelphia, and her. counsel, Tracy Brandeis-Roman, Esquire,
participated in the COnference by telephone.
3. The parties, who were never married and never lived together, had
a Child on Noverroer 21, 1998, ...tlile the ~:cther wat> tCr.'.pcrarily residing in
Shippensburg for college. The 110ther subsequently moved to Philadelphia in
early January 1999 and has resided there with her mother since that time.
The Father has resided in Fayetteville, Franklin County before and since
the Child's birth. The Mother filed a Petition for CUstody in Philadelphia
on April 21, 1999. Prior to receiving notice of those proceedings, the
Father filed a Petition for CUstody in this Court on May 11, 1999. A
CUstody Master's Hearing or Conference is scheduled in the Philadelphia
proceeding for June 28, 1999. Counsel for both parties filed preliminary
Objections and/or Motions Challenging Jurisdiction in the opposing parties'
actions. After much negotiation at an extended Conference, tl1e parties, to
their credit, were able to reach an agreement both on ongoing custody
arrangements and resolution of the jurisdictional issue.
4. The parties agreed to entry
of an Order in the form as attached.
~JL~
Dawn S. sunday, Esquire
OJstody COnciliator
~ .r; 1'i'i9
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THE LAW OFFICES OF TRACY BRANDEIS-ROMAN
BY; TRACY BRANDEIS-ROMAN, ESQUIRE
ATTORNEY I,D, NO, 61485 ATTORNEY FOR PETITIONER
42 S. 15TH STREET
ROBINSON BLDG., Ste.314
PHILADELPHIA, PA 19102
(215) 972-1400
CLIFF HOUSER
Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
FAMILY COURT DlVISION--
VS.
NO,: 99-2675
ANGELICA MARTINEZ
Defendant
CIVIL ACTION-LAW
MOTION TO STRIKE FOR
LACK OF VENUE/CHANGE
VENUE
pRDER
AND NOW, this
_ day of
, 1999, upon
considcr.ltion of the Motion to Strikc for Lack ofVcnuclChangc Venuc it hcrcby
ORDERED and DECREED that said Pctition is GRANTED.
.I.
4. As stated, the child Aiyanna was born on November 21,1998, Father
denied paternity, didllot file a Petition for Partial Custody and Mother moved
home to Philadelphia on .January 5, 1999, when AiYltnllll was less than two months
old.
5. On April 21, 1999, Mother filed II Complaint in Custody in the Court
of Common Pleas of Philadelphia County, Family Court Division and served father.
A hearing is scheduled for June 28, 1999. A copy of the time-stamped Petition is
hereby aUached and marked as Exhibit "A", A copy of the hearing notice for June
28, 1999 is hereby attached and marked liS Exhibit "B".
6. On May 5, 1999, apparently, Father filed a Complaint in Custody in
The Court of Common Pleas of Cumberland County.
7. Petitioner respectfully objects to the Cumberland County Custody
Complaint on basis of jurisdiction, We submit that proper jurisdiction exists in
Philadelphia County.
8. Pursuant to The Pennsylvania Rules of Civil Procedure Rule 1915.2
Venue,
Rule 1915.2 Venue
(a) An action may be brought in any county
(I)(i) which is in thc home county of the child at the time of
commencement of the procecding, or
(ii) which had been the child's home county within six months before
commencement of the proceeding and the child is absent from the
county because of the child's rem,,~iil or ri:ttii:i"u hj' U pe~on
claiming the child's custody or for other reasons and a parcnt or
person acting as parcnt continues to live in the county; or
(2) iI/which it is ill the best illterest of the cllild that the court decide the
matter becallse the child and the child's parents, or the child alld at
least ol/e party, hal'e a siguificallt cOllllecticl/I with the cOll/lty and
there is amilabie willI ill tIre COll/lty substal/tial el'idellce cOl/cerlling
the child's present or flltllre care, protectiol/, trailling and personal
relafiOluhips; or
(emphasis addcd)
9, First,as stated above in Rule 1915,2 (a)(I)(i), \'cnue exists when at the
time the proceeding was commenced, the county was the home county of the child.
No proceeding was "commenced" in Cumherland County until after Mother had
already commenced a proceeding in Philadelphia County. Mother filed her
custody petition on April 21, 1999 in Philadelphia County, Father on May 6, 1999 in
Cumbcrland County, Furthcr, the child, after birth for the first month and a half
of its life, lived ill Franklin Count", not Cumberland Connty, The child lived with
her mother only, not her father, ill Fral/kfill COllllty lInd never ever lived with her
father, neither in Cumberland County nor anywhcre else for thllt mlltter, as Father
did not want to participate, Therefore, Cumberland County is not the "home
county" liS defined hy Rule of Civil Procedure 1915.I(b),
9. Further, as stated above in Rule 1915.2 (a)(2), an lIction may be
brought "in lIny county which it is in the hest interest of the child that the court
decide the mlltter because the child, , ,and at least one of the pllrties have a
significant connection with the county lInd there is lIvailable within the county
substllntilll e\'idence concerning the child's present or future care, protection,
training lInd personal relationships. . ,"
I O. It is in the best interest of the child that the Philadelphia County court
decide the matter because Mother and Daughtcr have a significant connection with
the county and there is available within Philadelphia County substalltial evidence
concerning the child's present and future care, protcction, trnining and personal
relationships, AiYllnna's present and future Cllre, home, medical attention, needs,
daycare, Mother, with which she is breast feeding, Grandmother, with whom she
also lives and who is a live in babysittcr-all unequivocally exist in Philadelphia.
II. Further reasoning to support the fact that jurisdiction is more
appropriate in I'hillldelphill County is that at the time Mother moved home to
Philadelphia fllther had no officilll custody rights, had filed no custody petition and
hlld dcnied plllernity, completely contrary to the facts he alleges in his Custody
Complaint thllt Mother had left for I'hillldelphia to get the upper hand in a custody
battlc, without his permission. At that point in time, Mother had every right to
leave to go home lInd by law, did not ha\'e to file a Pdition to Relocate with the
courts to do so because Father hlld applied for no custody rights,
12. Therefore, contrary to Father's Petition for Custody, paragraph 7(1.'),
Icgaily Mother would not have to get Father's "permission" to move hack to the
town she Iind in her whole life before going to college in Franklin County. This is
especially so since Father refused to Iin with her and the bahy and try to be a
family, as II,. I/1'1'er fil'l'd ",itll tfll' cllild at all, illstelld he chose to live with a
roommate in an :lpartment.
I J. Further reason that jurisdiction would equitably be outside of
Cumberland County is been use Mother hnd been living in Philadelphia fur four nnd
one half months before she filed her Complaint in Custody. Mother made
:l!ternative vi:litation plans availnble to Father any time Father wanted. In fact,
Fnther had visited his child three times in Philndelphin since mother relocated there
on .January 5, 1999. He knew full and well of their Whereabouts, address and
telephone number, and visits were welcomed, Procedurally, Mother' filed for
eonfirmntion of custody first, in Philadelphia, however Mother is ready willing and
able to provide alternative ample visitation for Father and Aiyanna,
12, Further reason that jurisdiction wonld be equitable to be in
Philadelphia is because the child is a newborn and being brellst fed, and, mother hlls
nli automobile, therefore, it would it he unduly burdensome for Mother to have to
litigate in Carlisle, Pennsylvania. This added to the fact that the child never
resided in Cumberland County is, respectfully, the proverbial icing on the cake.
The only tic Aiyanna has to Cumberland County is that she was born in a hospital
in Cumberland County, This shows additionally that Cumberland County is
inappropriate as Aiyanna has no significant tics to Cumberland County as required
by Rule of Civil Procedure 1915,(a)(2),
12. Mother had always retained permanent residency in Philadelphia all
throughout her college life and baby now, too, has significant tics to the Philadelphia
Area, Substantial evidence Aiyanna's present and future care, home, medical
attention, needs, dayeare, Mother, with which she is breast feeding, Grandmother,
with whom she also lives and who is a live-in babysitter-all unequivocally ellist in
Philadelphia.
13, Considering that Mother went back home to Philndelphia, where she
had lived her whole life except to attend college at Shippensburg University, when
father had refused to e"er live with mother and daughter, denied paternity and had
not filed for custody of any kind, her leaving Frallklill COllllty was justified and not
contrary to the law. Additionally, the fact thnt Mother has been amenable to visits
for Father and Ai}'anna, add further to the reasoning that it would be just if
jurisdiction is in Philadelphia,
WHEREFORE, we respeetfull}' submit that this Honorable Court allow
jurisdiction to remain in Philadelphia, where the April 21, 1999 Custody Complaint
is now pending, scheduled for Court on ,June 28,1999.
Respectfully submitt('d.
-~
Tracy Brandeis-Roman. Esq,
Altorn,'y for J\fot!t('r
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, .. Plaintiff [~] information of a custody proceeding concerning the child
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Plaintiff [know/does not know 1 of a person not a partY to the proceedings who bas
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physical custody of the child(ren) or claims to have custody or visitation rights with respect to the
dilld(rcn).. The came and addresS of such person is:
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The best intereSt and permanent welfare of the child(rcn) will be served by
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granti.ns the relief requested for the following reason{s):
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